State Supreme Court refuses to stay judge's order releasing hospital surveillance video that led to arrest of police officers

Oklahoma Supreme Court justices on Tuesday unanimously denied a district attorney's request to delay enforcement of a judge's order releasing a video showing a confrontation in a local hospital emergency room between four Bartlesville police officers and a handcuffed patient.
 
The one-line order isn't surprising given that the Bartlesville Examiner-Enterprise received a copy of the hospital surveillance video in March and posted it online.
 
However, Washington County District Attorney Kevin Buchanan's appeal of District Judge Curtis L. DeLapp's ruling remains alive.
 
Buchanan had asked DeLapp to suspend his order against the Bartlesville police so Buchanan could appeal it. DeLapp refused, saying that Buchanan had no standing because the order didn't apply to him.
 
The city attorney and Buchanan had argued that the video was not public because mental health proceedings are confidential. The patient was the subject of an emergency detention order under mental health proceedings.
 
But DeLapp said the video "does not depict the administration of mental health treatment, mental health treatment information or the receiving of mental health treatment."
 
DeLapp noted that even if the video did contain such information, the patient had provided the newspaper with a waiver of his rights to confidentiality.
 
The city and Buchanan also contended that the video was not public under the state Open Records Act because it is not listed among the law enforcement information that must be released.
 
DeLapp rejected that argument, holding that the video contains "facts concerning the arrest and cause for the arrest" of the two police officers.
 
DeLapp ruled that the hospital surveillance video was a record that came into the custody of Bartlesville police "in connection with the transaction of public business, i.e. the investigation of crimes committed within its jurisdiction."
 
"In particular, the Court finds that the videotape(s) would include the cause of the arrest," he ruled.
 
In late April, the state Supreme Court denied Buchanan's petition declaring he has the right to appeal DeLapp's decision. But the one-line order agreed to by all the justices didn't offer an explanation. And Buchanan already had appealed the order releasing the video.
 
The 44-minute video shows a confrontation in a local hospital emergency room between four Bartlesville police officers and a handcuffed young man who had been brought to the hospital after expressing "suicidal thoughts."
 
The video has no audio. It shows the man "being pushed, choked, slapped and kneed by officers," the newspaper said.
 
"On the other hand, the patient appears to be constantly making verbal assaults and, in one instance, appears to spit at the officers," the newspaper reported. "There are instances, however, when each of the officers appears to react to something the man says or does — resulting in rough treatment of the patient.
 
"An especially disturbing episode on the video shows an apparent retaliatory confrontation with the man by [officer Sonya Jean] Worthington — who is seen punching, kneeing and twisting the head of the victim. The attack goes on for nearly a minute before one of the other officers intervenes," the newspaper reported.
 
Worthington and fellow Bartlesville police officer Stacy Charles Neafus were charged with assault and battery on Dec. 1. They and a third officer, Carey Duniphin, were fired in mid-January. A fourth officer, Josh Patzkowski, was placed on administrative leave following the incident but has returned to active duty, the newspaper reported.
 

 
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
 
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

State Supreme Court denies district attorney's petition for standing but appeal still pending

The state Supreme Court last week denied a district attorney's petition declaring he has the right to appeal a district judge's order that Bartlesville police provide the local newspaper with a copy of hospital surveillance video that led to the arrest of two officers in December.
 
But the one-line order agreed to by all the justices didn't offer an explanation.
 
And Washington County District Attorney Kevin Buchanan already has appealed District Judge Curtis L. DeLapp's decision.
 
The Bartlesville Examiner-Enterprise this week filed a motion asking the court to dismiss Buchanan's appeal.
 
The newspaper had filed an Open Records Act lawsuit against Buchanan, the city and police department on Feb. 3 after city officials said it would take a court order to get a copy of the video that led to two police officers being charged with assaulting a handcuffed patient.
 
DeLapp ruled March 12 that Bartlesville police had to provide the video, but he did not decide whether Buchanan had to as well.
 
On March 16, Buchanan asked DeLapp to suspend his order against the police so Buchanan could appeal it. DeLapp refused, saying that Buchanan had no standing because the order didn't apply to him.
 
The Bartlesville Examiner-Enterprise received a copy of the hospital surveillance video on March 16 after the newspaper agreed not to seek attorney's fees from the city, which in turn agreed not to appeal a judge's order to release the video.
 
On March 18, the newspaper posted the 44-minute video, which shows a confrontation in a local hospital emergency room between four Bartlesville police officers and a young man who had been brought to the hospital after expressing "suicidal thoughts."
 
On March 23, Buchanan filed a petition for a writ of mandamus with the appellate court. He wanted the state Supreme Court to suspend DeLapp's order and grant him standing to appeal it.
 
Before getting an answer from the court, Buchanan filed the appeal on April 4.
 
The court's denial of Buchanan's petition for standing "could mean either that the court doesn't believe the DA has standing or it could mean that the court just doesn't see the writ as being the proper procedure to raise the issue and it expects to deal with standing/mootness in the appeal itself," said media attorney Robert Nelon of Hall Estill.
 
Nelon is representing FOI Oklahoma, the Reporters Committee for Freedom of the Press and the Oklahoma Society for Professional Journalists Pro Chapter, which are asking permission to file as amici curiae in the case.
 

 
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
 
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

District attorney asks state Supreme Court for right to appeal district judge's decision releasing surveillance video that led to arrest of Bartlesville police officers

Washington County District Attorney Kevin Buchanan wants the state Supreme Court to grant him the right to appeal a district judge's order that Bartlesville police provide the local newspaper with a copy of hospital surveillance video that led to the arrest of two officers in December.

Buchanan filed a petition for a writ of mandamus with the appellate court on Friday. (Read Buchanan's brief in support of his petition.)

Oral arguments are scheduled for April 18.

The Bartlesville Examiner-Enterprise had filed an Open Records Act lawsuit against Buchanan, the city and police department on Feb. 3 after city officials said it would take a court order to get a copy of the video that led to two police officers being charged with assaulting a handcuffed patient.

Washington County District Judge Curtis L. DeLapp ruled against the Bartlesville police on March 12. His ruling did not decide whether Buchanan had to release the video.

On March 16, Buchanan asked DeLapp to suspend his order against the police so Buchanan could appeal it. DeLapp refused, saying that Buchanan had no standing because the order didn't apply to him.

The Bartlesville Examiner-Enterprise received a copy of the hospital surveillance video on March 16 after the newspaper agreed not to seek attorney's fees from the city, which in turn agreed not to appeal a judge's order to release the video.

On March 18, the newspaper posted the 44-minute video, which shows a confrontation in a local hospital emergency room between four Bartlesville police officers and a young man who had been brought to the hospital after expressing "suicidal thoughts."

Now, Buchanan wants the state Supreme Court to suspend DeLapp's order and grant him standing to appeal the order.

Buchanan argues that DeLapp's ruling against the police department "jeopardizes" criminal investigations after arrests and subsequent prosecutions by requiring the disclosure of evidence to the news media.

Buchanan and the city had contended that the video was not public under the state Open Records Act because it is not listed among the law enforcement information that must be released.

DeLapp rejected that argument, holding that the video contains "facts concerning the arrest and cause for the arrest" of the two police officers.

The video has no audio. It shows the man "being pushed, choked, slapped and kneed by officers," the newspaper said.

"On the other hand, the patient appears to be constantly making verbal assaults and, in one instance, appears to spit at the officers," the newspaper reported. "There are instances, however, when each of the officers appears to react to something the man says or does — resulting in rough treatment of the patient.

"An especially disturbing episode on the video shows an apparent retaliatory confrontation with the man by [officer Sonya Jean] Worthington — who is seen punching, kneeing and twisting the head of the victim. The attack goes on for nearly a minute before one of the other officers intervenes," the newspaper reported.

Worthington and fellow Bartlesville Police Department officer Stacy Charles Neafus were charged with assault and battery on Dec. 1. They and a third officer, Carey Duniphin, were fired in mid-January. A fourth officer, Josh Patzkowski, was placed on administrative leave following the incident but has returned to active duty, the newspaper reported.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Bartlesville newspaper posts hospital surveillance video that led to assault charges against two police officers

The Bartlesville Examiner-Enterprise received a copy of a hospital surveillance video on Friday after the newspaper agreed not to seek attorney's fees from the city, which in turn agreed not to appeal a judge's order to release the video.

The newspaper on Sunday posted the 44-minute video, which shows a confrontation in a local hospital emergency room between four Bartlesville police officers and a young man who had been brought to the hospital after expressing "suicidal thoughts."

The video has no audio. It shows the man "being pushed, choked, slapped and kneed by officers," the newspaper said.

"On the other hand, the patient appears to be constantly making verbal assaults and, in one instance, appears to spit at the officers," the newspaper reported. "There are instances, however, when each of the officers appears to react to something the man says or does — resulting in rough treatment of the patient.

"An especially disturbing episode on the video shows an apparent retaliatory confrontation with the man by [officer Sonya Jean] Worthington — who is seen punching, kneeing and twisting the head of the victim. The attack goes on for nearly a minute before one of the other officers intervenes," the newspaper reported.

Worthington and fellow Bartlesville Police Department officer Stacy Charles Neafus were charged with assault and battery on Dec. 1. They and a third officer, Carey Duniphin, were fired in mid-January. A fourth officer, Josh Patzkowski, was placed on administrative leave following the incident but has returned to active duty, the newspaper reported.

City officials had refused to release the video to the newspaper without a court order.

On March 12, District Judge Curtis L. DeLapp ordered Bartlesville police to provide the newspaper with a copy.

DeLapp said the video apparently "does not depict the administration of mental health treatment, mental health treatment information or the receiving of mental health treatment."

The judge noted that even if the video did contain such information, the patient had provided the newspaper with a waiver of his rights to confidentiality.

DeLapp also held that the video was public under the state Open Records Act because it contains "facts concerning the arrest and cause for the arrest" of the two police officers.

On Friday, Worthington, Neafus and Duniphin were among eight current and former Bartlesville Police Department officers who sued the city claiming "illegal and improper employment practices."

The alleged release of confidential personnel information is among the claims in the lawsuit, including that the city, "under the guise of 'training films," has shown the hospital surveillance video to other employees, the Bartlesville Examiner-Enterprise reported.

They also claimed that police officials had also taken the "video outside of the police department showing the video for other than 'training' purposes," the newspaper said.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Bartlesville newspaper wins access to videotape in which two police officers allegedly assaulted a handcuffed hospital patient

A Washington County judge has ordered Bartlesville police to provide the local newspaper with a copy of hospital surveillance video that led to the arrest of two officers in December.

But the Bartlesville Examiner-Enterprise has not received the copy since the judge's ruling Monday afternoon.

Police Chief Tom Holland apparently is delaying release of the video so District Attorney Kevin D. Buchanan can seek an order from another judge to keep it confidential as part of his criminal investigation against the two officers.

When District Judge Curtis L. DeLapp ruled against the Bartlesville police on Monday, he did not decide whether Buchanan had to release the video.

The newspaper filed the Open Records Act lawsuit against Buchanan, the city and police department on Feb. 3 after city officials said it would take a court order to get a copy.

The video reportedly shows at least a portion of the incident in which two police officers are accused of striking and choking a handcuffed patient when they responded with other officers to the Jane Phillips Medical Center to help with a combative patient in September. Bartlesville police officials obtained the video through a search warrant.

The two officers were charged with assault and battery on Dec. 1 and fired in January.

The city attorney and Buchanan argued that the video was not public because mental health proceedings are confidential. The patient was the subject of an emergency detention order under mental health proceedings.

But DeLapp said the video apparently "does not depict the administration of mental health treatment, mental health treatment information or the receiving of mental health treatment."

DeLapp noted that even if the video does contain such information, the patient has provided the newspaper with a waiver of his rights to confidentiality.

The city and Buchanan also contended that the video was not public under the state Open Records Act because it is not listed among the law enforcement information that must be released.

DeLapp rejected that argument, holding that the video contains "facts concerning the arrest and cause for the arrest" of the two police officers.

In DeLapp's ruling, he relied upon a 2004 state Supreme Court decision that Department of Public Safety recordings of administrative hearings concerning revocation of drivers' licenses were public under the Open Records Act. (Fabian & Assoc., P.C., v. State ex. rel. Dept. of Public Safety, 2004 OK 67)

The Supreme Court held that the requested tapes contained facts concerning arrests and therefore were open under the Open Records Act. (Id. ¶ 14)

The statute makes public the "facts concerning the arrest, including the cause of arrest and the name of the arresting officer." (OKLA. STAT. tit. 51, § 24A.8(2))

"By this statute," the Supreme Court said, "DPS is required to make available for public inspection facts concerning the arrest. [The plaintiff] asserts that the requested tapes contain the facts concerning the arrest and therefore § 24A.8(A)(2) requires the tapes to be open for public inspection. We agree."

DeLapp ruled that the hospital surveillance video was a record that came into the custody of Bartlesville police "in connection with the transaction of public business, i.e. the investigation of crimes committed within its jurisdiction."

"In particular, the Court finds that the videotape(s) would include the cause of the arrest," he ruled.

In contrast to DeLapp, a Rogers County judge in August ruled that Claremore police dash-cam video was not a public record. She said Fabian dealt "with what amounts to a transcript of a public hearing" while the dash-cam recording was a "direct piece of evidence."

DeLapp's interpretation seems the more plausible of the two.

And provides a much-needed victory for the public's right to know during Sunshine Week.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

Bartlesville newspaper sues city for videotape in which two police officers allegedly assaulted a handcuffed hospital patient

The Bartlesville Examiner-Enterprise today filed an Open Records Act lawsuit against the city and district attorney, seeking a copy of hospital surveillance video that reportedly led to the arrest of two police officers in December.

The two officers were charged with assault and battery on Dec. 1 and fired last month, the newspaper reported.

They are accused of striking and choking a handcuffed patient when they responded with other officers to the Jane Phillips Medical Center to help with a combative patient in September.

The video reportedly shows at least a portion of the incident, the newspaper said.

Bartlesville police officials obtained the video through a search warrant. The newspaper also said District Attorney Kevin Buchanan showed portions of the video to members of the Fraternal Order of Police Lodge 117, many of whom were not involved with either the incident or the investigation into the conduct of the officers.

City officials twice denied the newspaper's requests for the video, saying it would take a court order to get a copy.

Public access to police videos has become an issue in the state, most recently in December when Owasso officials provided the police officer lapel camera video and audio materials sought by the family of a Tulsa man who had died in the Tulsa County jail. But the family had to file an Open Records Act lawsuit before city officials would release the material.

It also took an Open Records Act lawsuit for Catoosa officials to agree in June that police audio and video recordings were public under the Open Records Act.

But in August, a Rogers County judge ruled that police dash-cam video was not a public record. Requesters could ask a court to find that the release of a particular recording would serve a public interest that outweighed the reason for denial, the judge said.

In the Bartlesville lawsuit, the newspaper argues the "public’s interest substantially outweighs any conceivable reason the defendants may have to deny access," explaining,

The public maintains a compelling interest in records of public bodies that disclose whether the public body and its employees are ‘honestly, faithfully and competently performing their duties’ and unless the records are confidential by law, the records must be made available to the citizens.

The newspaper also contends that "since the videotape contains facts concerning the arrest of public servants, the videotape must be produced."

That argument seems supported by a 2004 state Supreme Court ruling that DPS recordings of administrative hearings concerning revocation of drivers' licenses were public under the Open Records Act. (Fabian & Assoc., P.C., v. State ex. rel. Dept. of Public Safety, 2004 OK 67)

The Supreme Court held that the requested tapes contained facts concerning arrests and therefore were open under the Open Records Act. (Id. ¶ 14)

The statute makes public the "facts concerning the arrest, including the cause of arrest and the name of the arresting officer." (OKLA. STAT. tit. 51, § 24A.8(2))

"By this statute," the Supreme Court said, "DPS is required to make available for public inspection facts concerning the arrest. [The plaintiff] asserts that the requested tapes contain the facts concerning the arrest and therefore § 24A.8(A)(2) requires the tapes to be open for public inspection. We agree."

In contrast, the Rogers County judge said the Supreme Court case dealt "with what amounts to a transcript of a public hearing" while the dash-cam recording was a "direct piece of evidence."

In other words, the Supreme Court had interpreted the Open Records Act as requiring certain information in the hands of law enforcement to be made public. The Rogers County judge, however, read the statute as listing documents that must be public and dash-cam recordings are not specified. (See OKLA. STAT. tit. 51, § 24A.8(1-8))

In Bartlesville, the newspaper also argues that city officials don't have a legitimate reason for withholding the video, in part because any claim of confidentiality was waived when the video was shown to third parties.

The newspaper is being represented by James Elias of Brewer, Worten, Robinett law firm.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications


The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.